[Congressional Record Volume 166, Number 184 (Sunday, October 25, 2020)]
[Senate]
[Pages S6471-S6483]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of Amy Coney Barrett
Mr. CARPER. Mr. President, I rise this afternoon to share with you
and our colleagues some of my thoughts concerning the nomination of
Judge Amy Coney Barrett to serve as an Associate Justice of the Supreme
Court of these United States.
I believe it was Winston Churchill who once said these words: ``The
further back we look, the further forward we see.'' So let me begin
today by looking back in time--way back in time.
More than 230 years ago, during the Constitutional Convention in
Philadelphia, just up the road from my family's home in Wilmington, DE,
our Founders debated at great length on how to create a different kind
of government--an experiment, if you will, in which a nation's citizens
would elect their own leaders, and a system of checks and balances
would ensure that country would never--never--be led by a tyrant.
Among the most contentious issues they debated during that summer of
1787 in the City of Brotherly Love was the creation of a Federal
judiciary. Our Founders disagreed, oftentimes strongly, about what our
judicial system should look like and how judges should be selected: Who
would nominate them? Who would confirm them? Would they serve one term,
multiple terms, or would their appointments be lifetime in nature?
When the Framers appeared to be hopelessly deadlocked, members of the
clergy were brought in to pray that God would provide the leaders with
the wisdom to break the impasse.
In the end, it apparently worked, and our Founding Founders ended up
adopting a compromise very similar to one they had rejected just a few
weeks earlier; namely, the President would nominate judges to serve
lifetime appointments with the advice and consent of the Senate.
Not surprisingly, almost 240 years later, we are still sparring over
what those words should mean.
Having said that, the blueprint that was drafted that year and later
ratified by the 13 States would go on to become the most enduring and
replicated Constitution in the history of the world.
Among our most important sworn duties here in the U.S. Senate is to
act as caretakers of that Constitution and the rights it provides for
our citizens while protecting this unique system of checks and balances
that provide the foundation on which our democracy is built.
That brings us to the present. This past week, Republican Members of
the Senate Judiciary Committee voted to advance Judge Barrett's
nomination to the floor of the Senate, but they have done so, I fear,
at great cost to this body and quite possibly to our democracy.
When our Founders carefully designed our system of checks and
balances, they did not envision a sham confirmation process for
judicial nominees. But as much as I hate to say it, that is what this
one has been, pure and simple. This entire process has become an
exercise in raw political power, not the deliberative, nonpartisan
process that our Founders envisioned.
Frankly, it has been a process that I could never have imagined 20
years ago when I was first elected to serve with my colleagues here.
Over those 20 years, I have risen on six previous occasions to offer
remarks regarding nominees to the Supreme Court as we considered the
nominations of Chief Justice Roberts, Justice Alito, Justice Sotomayor,
Justice Kagan, Justice Gorsuch, and Justice Kavanaugh.
One name not mentioned among the six I have just listed is that of
Judge Merrick Garland. After being nominated by President Clinton to
serve on the DC Circuit Court of Appeals--that is the top appellate
court in the country--and confirmed by a Republican-led Senate with a
bipartisan margin of more than 3 to 1--76 to 23, in fact--Judge Garland
has served with distinction on our top appellate court since 1997,
including for many years as its chief judge.
President Obama later nominated him to serve on the Supreme Court 237
days before election day in 2016--237 days before election day.
By submitting the name of Judge Garland to the U.S. Senate for
consideration 4 years ago, President Obama, who was twice elected by
clear margins in both the popular vote and the electoral college,
nominated a man who spent his entire 20-year career as a judge working
to build consensus and find principled compromises. Yet we never got a
chance to consider Judge Garland's nomination to serve on the Supreme
Court on this Senate floor.
Judge Garland wasn't given a vote either in committee or here in the
U.S. Senate. Judge Garland wasn't given a hearing. Most of our
Republican colleagues wouldn't even meet with him, even though many of
them had voted earlier to confirm him to, again, serve on the top
appellate Court of our land.
Judge Garland's nomination languished for 293 shameful days. A great
many Americans believe that it is the equivalent of stealing a Supreme
Court seat. A good man--a very good man--was treated badly and so, too,
was our Constitution.
Still, many of our Republican colleagues assured us that if the
tables were turned later on, they would hold themselves to the same
standard and only allow the next President to fill the Supreme Court
seat should a vacancy occur during an election year.
Then, on September 18, 2020, Justice Ruth Bader Ginsburg passed away,
46 days before a Presidential election. And with her death, most of our
Republican colleagues changed their tune almost overnight.
Today, with more than 220,000 Americans dead and more than 8 million
[[Page S6472]]
Americans infected with the coronavirus--not to mention 13 million
unemployed--we are in the midst of an election, rushing to confirm a
controversial nominee from President Trump, who lost the popular vote
by nearly 3 million votes and was subsequently impeached by the House.
Judge Barrett's nomination was rushed out of committee just 12 days
before election day, in a process that many believe was a clear
violation of the rules of the Judiciary Committee. Think about that--12
days.
Instead of keeping their word, a number of our Republican colleagues
are fast-tracking a nominee--and not a consensus nominee from the
judicial mainstream like Judge Merrick Garland--as tens of millions of
Americans are mailing their ballots in, dropping off their ballots, and
lining up to vote.
This confirmation process is shameful. It is unprecedented. If you
have ever wondered what hypocrisy looks like, this is it.
I know that many Americans, including many of our Republican
colleagues, see in Amy Coney Barrett a well-qualified judge and, in
Donald Trump, a duly elected President, and they believe a vote is
necessary because, after all, it is spelled out in the Constitution.
Well, let me be clear. There was no precedent for the shameful
blockade of consideration for Judge Merrick Garland, and there is no
precedent for confirming Judge Barrett just 8 days before an election.
As my colleagues know, I am not given to hyperbole, but rushing to
confirm Judge Barrett has the potential of altering, perhaps forever,
the way the American people view the Supreme Court and the U.S. Senate.
To our Republican friends, let me remind you that just because you
can do this and get away with it doesn't make it right. This is wrong,
and in your hearts you know it is wrong. Your actions stand our system
of checks and balances on its head--in the end, only serving to weaken
our democracy, not strengthen it.
To those Americans who want to see an up-or-down vote on Judge
Barrett, I understand that you may not share my views or my fears,
which many other people do share, but let me stop here for a moment to
share with you something that isn't widely known about most Republicans
and most Democrats here in the U.S. Senate.
While you would never know it most days by watching the news, most of
us who serve in this body generally get along. While a lot has changed
since Senators Pat Leahy and Chuck Grassley came here a long time ago,
bipartisan friendships still endure, although they don't flourish as
they once did.
Many of us agree at times in hearing rooms and many of us disagree at
times in hearing rooms and on the Senate floor, but just about every
week that we are in session, a number of Democrats and Republicans
still find time together for prayer and reflection, whether at Prayer
Breakfast in the Capitol or at one of several bipartisan Bible study
groups, including one led by our Senate Chaplain, Barry Black, who
previously served as Chief of Chaplains for the Navy and the Marine
Corps.
Oftentimes at these gatherings we are reminded of the Golden Rule,
one of the two greatest commandments: to treat other people the way we
want to be treated.
After serving here for 20 years, I remain convinced that our
friendships and our ability to reach consensus on critical issues
facing our Nation are based in no small part on our faithful adherence
to that commandment, which can be found in every major religion of the
world, and we are at our best here in this body when we follow it.
I believe that true adherence to the Golden Rule calls for fairness
in the way we discharge our constitutional responsibilities for
judicial nominations, too, including nominations to the Supreme Court,
regardless of which party occupies the White House or the Presiding
Officer's chair.
We can't have one set of rules for Democratic Presidents and another
set of rules for Republican Presidents. The Golden Rule called for a
vote for Judge Garland, and I believe that, today, the Golden Rule
calls for hitting the pause button on Judge Barrett's nomination until
the President, who is elected in 9 days, is sworn into office.
Why? Because the American people deserve to have their voices heard.
But you don't have to take my word for this. Consider, if you will, the
words of our Republican leader, Mitch McConnell, from March 2, 2016, 14
days before President Obama had even nominated Judge Merrick Garland to
serve on the Supreme Court, following the death of Justice Scalia, and
a whole 7 months--a whole 7 months--before an election.
Leader McConnell said 4 years ago:
The American people deserve to be heard on this matter.
That's the fairest and most reasonable approach today.
He went on to say:
Voters have already begun to choose the next President who
in turn will nominate the next Supreme Court Justice. . . .
This is something the American people should decide.
That is what he said 4 years ago.
Let's also listen to what the current chairman of the Senate
Judiciary Committee, Senator Graham, told us March 10, 2016. This is
what he said:
I want you to use my words against me.
Think of that.
I want you to use my words against me. If there's a
Republican President [elected] in 2016 and a vacancy occurs
in the last year of the first term, you can say, ``Lindsey
Graham said, `Let's let the next President, whoever it might
be, make that nomination.' ''
And finally, here is the advice of my friend, then-chairman of the
Senate Judiciary Committee, Senator Chuck Grassley, following the death
of Justice Scalia. He said:
The President should exercise restraint and not name a
nominee until after the November election is completed.
He went on to say:
President Lincoln is a good role model for this practice.
The President should let the people decide.
I am glad Senator Grassley mentioned our Nation's 16th President
because I believe President Lincoln's example will serve us well,
especially at this moment. Why do I say that?
Well, after a Supreme Court vacancy occurred just 27 days before the
1864 Presidential election, what did President Lincoln do about it? Did
he rush to fill the vacancy? Did he call the Senate to push through a
nominee in a month's time, largely because he could? No, he did not.
In the midst of a Civil War that took the lives of hundreds of
thousands of Americans, Lincoln called for allowing the American people
first to decide who would be President, and that person would then
nominate a candidate for the vacant seat, with the advice and consent
of the Senate.
Nearly 150 years later, Lincoln's words give us a clear roadmap for
doing the right thing: Let the American people have their voices heard
before filling this vacancy, instead of rushing it through just days
before an election.
As we all know, the Supreme Court seat we are debating today was left
vacant by the death of Justice Ruth Bader Ginsburg, who served on the
Supreme Court since 1993. We continue to mourn her loss. We continue to
pray for her family and loved ones.
Justice Ginsburg may have been small in stature, but, in death, our
Nation has lost a true giant. Ruth Bader Ginsburg made it her life's
work to challenge the laws and systems in this country that limited
opportunity for women solely on the basis of their gender. She was a
pioneer in her own right, but perhaps even more importantly, she paved
the way for generations of women and girls who would come after her.
Today, women can sign a mortgage on their own in no small part
because of Ruth Bader Ginsburg. Today, women can open a bank account or
apply for a credit card without a male cosigner in no small part
because of Ruth Bader Ginsburg. And, today, pregnant women cannot be
discriminated against at work in no small part because of Ruth Bader
Ginsburg.
I am confident that her legacy will live on, especially in all the
women and young girls she inspired throughout her remarkable life, but,
unfortunately, with her passing, the equality that she spent her life
fighting for is now on the line.
Many Americans believe in their hearts that the threats posed by this
nominee, the one before us at this moment, are real. That is
particularly true when it comes to access to affordable healthcare, to
the rights of women to make their own healthcare decisions, to voting
rights, and, perhaps
[[Page S6473]]
most importantly, to the future of our planet.
The Affordable Care Act hangs in the balance with this nomination.
Think about that for a moment. Right now, our country is in the midst
of a public health crisis the likes of which those of us living have
never seen.
Over 8 million of our fellow Americans have been infected with this
coronavirus. Over 220,000 lives have been lost to this deadly virus.
That is more than the entire population of Des Moines, IA. We are
consistently seeing 700 Americans die from the coronavirus every day.
The front page of yesterday's Wall Street Journal makes it clear. It
is not getting better; it is getting worse.
As it turns out, America has less than 5 percent of the world's
population, but our country accounts for more than 20 percent of the
world's deaths from coronavirus. No other nation on Earth comes close
to that. The numbers don't lie.
Mexico, our neighbor to our south, has lost 88,000 people to the
coronavirus; we have lost 220,000. The United Kingdom has lost 44,000;
we have lost 220,000. France has lost 34,000, Germany just over 10,000,
and we have lost over 220,000. Canada, our neighbor to the north, has
lost just over 9,000; Japan, 1,700 deaths; Australia, 905 deaths; South
Korea, just 457 deaths from the coronavirus; and we have lost over
220,000.
While this carnage continues here and abroad, our friends in the
other party continue to press the Supreme Court to throw out--to throw
out--the Affordable Care Act in its entirety, not next year, next
month.
Meanwhile, nearly 13 million Americans are unemployed, and our
unemployment rate, at nearly 8 percent, is more than double the rate
from the beginning of this year. But rather than prioritize public
health and long-overdue relief for the millions of Americans who are
struggling to get by, our Republican colleagues have instead decided to
fast-track a Supreme Court nominee just 8 or 9 days before a
Presidential election.
So why the rush? Well, to figure that out, all you have to do is look
at a calendar. Just 7 days after election day on November 10, the
Supreme Court will hear oral arguments in a case known as California v.
Texas. California v. Texas--a case that was brought by 18 Republican
attorneys general and the Trump administration--seeks to overturn the
Affordable Care Act in its entirety--in its entirety.
If confirmed, Judge Barrett may well end up casting the deciding vote
on whether or not to strike down the Affordable Care Act, and we know
from her own words that Judge Barrett does not agree with the decision
written by Chief Justice Roberts to uphold the constitutionality of the
Affordable Care Act a few years ago.
She wrote that the Chief Justice had ``pushed the Affordable Care Act
beyond its plausible meaning to save the statute.'' Judge Barrett said
nothing during her confirmation hearing to distance herself from these
words.
And what exactly could the consequences of overturning the ACA be?
Well, for starters, those consequences could mean that nearly 135
million Americans who have a preexisting condition could be charged
more for healthcare, in many cases making their healthcare
unaffordable.
It could mean returning to a time when insurers could design plans
that excluded coverage for contraception and family planning, as well
as conditions like pregnancy, mental healthcare, and substance abuse
treatment.
Overturning the Affordable Care Act could threaten Medicaid expansion
that provides healthcare coverage to over 15 million low-income
Americans, many of them living in some of the most rural parts of
America.
It would mean that young adults under the age of 26 may no longer be
able to stay on their parents' healthcare plans.
It would jeopardize the tax credit that over 9 million Americans
receive to help cover their own healthcare costs.
And that is just to name a few things--just a few. But make no
mistake, overturning the Affordable Care Act in the middle of the
night, in the middle of the worst pandemic in a century, will have
devastating and far-reaching impacts on our healthcare system and
nearly every American, including the more than 8 million Americans who
will be left with a new preexisting condition: the coronavirus.
Sadly, that is what our President and many of our Republican
colleagues are intent on doing as we battle COVID-19 every day and in
every State of our country. Having failed nearly 100 times to repeal or
chip away at the Affordable Care Act in Congress, Donald Trump and many
of our Republican colleagues are now counting on the Supreme Court to
do their work for them, and they are within one vote--one vote--of
achieving their goal--one vote.
A woman's right to make her own personal and intimate healthcare
decisions hangs in the balance with this nomination. During her
confirmation hearing, Judge Barrett refused to say much of anything on
this critical women's rights issue, including whether Roe v. Wade was
correctly decided in 1973.
Interestingly, though, she did cite Justice Ginsburg and the so-
called Ginsburg rule and asserted that it prevented the nominee--this
nominee--from indicating how she would rule as a Supreme Court Justice
on these matters. But let's actually look at what Justice Ginsburg said
about Roe v. Wade during her own confirmation hearing in 1993, 27 years
ago. Justice Ginsburg said:
The decision whether or not to bear a child is central to a
woman's life, to her well-being and dignity. It is a decision
she must make for herself. When Government controls that
decision for her, she is being treated as less than a fully
adult responsible for her own choices.
Justice Ginsburg did not deflect or refuse to answer the central
question: Should women have the right to make their own healthcare
decisions? Justice Ginsburg was forthright, and the Senate confirmed
her by a vote of 96 to 3--96 to 3.
Given Judge Barrett's lack of clarity on this critical matter, I am
left to consider her past record and statements. My hope is that Judge
Barrett would uphold nearly 50 years of precedence and maintain this
constitutional right for women. However, my fear is that Justice
Barrett was nominated because she meets Donald Trump's stated litmus
test to overturn this constitutional right that an overwhelming
majority of Americans support.
Voting rights and the integrity of our elections also hang in the
balance with this nomination. Earlier this week, a deadlocked Supreme
Court barely--just barely--upheld a Pennsylvania lower court decision
that allows mail-in ballots in Pennsylvania to be counted in the
upcoming election. The vote was tied 4 to 4, which means the issue is
not settled permanently. It means that Judge Barrett may very well be
the deciding vote on many disputes related to the upcoming election.
How would a Justice Barrett have ruled in the Pennsylvania case?
During her confirmation hearing, Judge Barrett refused to answer
questions about the legality of poll taxes, voter intimidation, voter
discrimination, and whether or not the President can unilaterally move
election day. It strains credulity to believe that Judge Barrett does
not know that poll taxes are unconstitutional, that voter intimidation
is unconstitutional, that voter discrimination is unconstitutional, and
that the President cannot move election day. Why can't he? Because--you
guessed it--it would be unconstitutional, even if he tried.
More than ever, we need Justices on the Supreme Court, along with
judges on other Federal courts, who can be counted on by the American
people to uphold the integrity of the upcoming election and on future
elections.
Based on her testimony before the Senate Judiciary Committee earlier
this month, I am not sure that Judge Barrett can be counted on by the
rest of us to ensure that--win or lose--President Trump stays within
the boundaries of the law and abides by the will of the American voters
on November 3.
As it turns out, there is a lot more than an election that may hang
in the balance with this nomination, and that includes the very future
of our planet and its inhabitants.
Over the course of her confirmation hearing, on three separate
occasions--three separate occasions--Judge Barrett refused to
acknowledge the plain
[[Page S6474]]
and indisputable facts that climate change is real and that human
activity is the primary--not the only but the primary--cause of our
current climate crisis, which we see evidence of almost every single
day.
Hurricane-force winds pierced through America's Heartland this
summer, flattening one-third--one-third--of Iowa's crops in a matter of
hours. Our east coast and gulf coast are experiencing one of the most
active hurricane seasons ever recorded, with more tropical storms, more
rainfall, and more rapid intensification. One of our colleagues from
Louisiana told me last month that his State is losing the equivalent of
one football field to the sea every 100 minutes. That is right--not
every week, not every month, not every day. Every 100 minutes, the
equivalent of one football field is lost to the sea.
Last summer, fueled by record heat, long droughts and as many as
12,000 lightning strikes in 36 hours--think about that, 12,000
lightning strikes in 36 hours--wildfires destroyed parts of California
the size of my State. This past week Colorado has witnessed wildfire
destruction that is almost as bad.
That is not all. This year, recordbreaking heat waves simmered the
coldest places on Earth, from Antarctica to the Arctic Circle, where
the temperature reached 100 degrees Fahrenheit for the first time ever.
That is right--100 degrees Fahrenheit along the Arctic Circle.
Temperatures in Alaska reached over 90 degrees Fahrenheit for the first
time in that State's history. Temperatures in Death Valley reached over
134 degrees Fahrenheit--the hottest temperature ever recorded on this
planet. July was the hottest July ever recorded. September was the
hottest September recorded. And, on the heels of the hottest decade on
Earth, this year is on track to be one of the hottest years ever
recorded--this year. And it is not getting better. It is getting worse.
Yet, when she was first asked, simply, if climate change was real,
Judge Barrett responded that she is ``not a scientist.''
I am not a scientist, either. I am, however, the senior Democrat on
the Senate Environment and Public Works Committee, and like millions of
Americans, I recognize the simple fact that you don't have to be a
scientist to trust scientists. You don't have to be entrenched in the
studies of science to know that it is gravity which is keeping our feet
firmly on the ground.
When Judge Barrett was later asked by one of our colleagues whether
coronavirus is infectious, Judge Barrett said: ``It's an obvious fact,
yes.''
She was then asked if smoking causes cancer, and Judge Barrett said:
``Yes, every package of cigarettes warns that smoking causes cancer.''
But then, when asked a third question--whether or not the nominee
believed that climate change is happening, and that it is threatening
the air we breathe and the water we drink--Judge Barrett refused to
acknowledge the simple fact that climate change and global warming are
real. Instead, Judge Barrett asserted that climate change is ``a
contentious matter of debate''--``a contentious matter of debate.''
Climate change is not ``a contentious matter of debate.'' There is
overwhelming consensus among the global scientific community that our
planet is warming, and that warming is caused by carbon pollution,
largely. Climate change is real. We see it every day in this country
and every day on this planet.
It is threatening the air we breathe and the water we drink. The
American people, and the people of our planet, see the effects of
climate change and global warming every single day, and these are
indisputable and undeniable facts, not a matter of debate.
Judge Barrett's views on climate change stand in stark contrast to
the science and the views of the vast majority of the American people
too. They also stand in stark contrast to the views of the late Justice
Ruth Bader Ginsburg. Quite simply, Judge Barrett's views are out of
touch with reality, and that poses a real threat to public health,
environmental quality, and, I think, the very future of this planet.
Let me echo, if I may, the words of President Emmanuel Macron of
France, who just down the hall here at the other end of the Capitol a
couple of years ago stood before a joint session of Congress, and he
called for our country, the United States, to once again lead the world
on climate change. He reminded us, and he said: We have only one
planet.
There is no planet B--no planet B. In fact, I fear there has never
been a more dangerous time to confirm a climate denier to a lifetime
appointment on the Supreme Court. Scientists warn that we are on the
brink of irreversible planetary destruction if we do not begin to
dramatically reduce global warming pollution. Over the next few
decades, the Supreme Court will decide the fate of critical
environmental issues--issues that will aid, or drastically curtail, the
abilities of future Presidential administrations and Congresses to
enact environmental policies that are essential to our survival as a
planet.
By way of contrast, Judge Barrett's predecessor, Justice Ginsburg,
was a critical tie-breaking vote on one of the most important climate
change cases in the Supreme Court's history, called Massachusetts v.
EPA.
Recall with me, if you will, that Massachusetts v. EPA affirmed the
Environmental Protection Agency's authority and duty to regulate
tailpipe emissions of greenhouse gases as a pollutant under the Clean
Air Act.
It also provided the legal underpinning for numerous other Obama
administration climate regulations that the Trump administration has
been hell-bent to destroy.
Just as the Supreme Court was designed by our Founders to remain
above the political fray, our Supreme Court Justices should not fall
prey to the blatant misinformation at the heart of climate denial.
Sadly, during her confirmation hearing, Judge Barrett demonstrated
that, on an issue so critical for the survival of our planet as we know
it, she does not appear to be guided by science and is unlikely to be
guided by the facts when it comes to global warming.
That, my friends, should scare the heck out of us.
These issues that Justice Ginsburg fought so hard to protect over the
course of her life--healthcare, the rights of women to make their own
healthcare decisions, voting rights, and the future of our planet--hang
in the balance with this nomination, and for these reasons, I will not
be supporting the nomination of Judge Barrett.
Let me conclude, if I may, by noting that Justice Ginsburg did some
of her most memorable work in dissent. During her memorial service in
the U.S. Capitol, Justice Ginsburg's rabbi said:
Justice Ginsburg's dissents were not cries of defeat. They
were blueprints for the future.
Justice Ginsburg knew that just because you don't have the votes
doesn't mean you are any less right. Justice Ginsburg knew that a great
dissent will speak to the future and just might eventually become the
majority view.
Today, we may not have the votes to stop this process or vote down
this nominee, but that doesn't make our efforts to fight for fairness
any less right. I could be mistaken, but I believe in my heart the
American people will make their voices heard loud and clear on what I
believe is a sham of a confirmation process, and they will do it on
election day.
Like Justice Ginsburg, the American people are dissenting against
this process and against this nominee, and I believe they will be
voting in record numbers. In fact, they already are.
Judge Barrett may be confirmed, but let history show I tried hard,
both to follow the Golden Rule and the example of Justice Ginsburg, and
I refused to join the majority opinion.
With that, I dissent, but I don't yield the floor. I yield my
remaining postcloture time to the Democratic leader. I yield my
remaining postcloture time to the Democratic leader. And I yield to the
Senator from Washington State, my friend and colleague.
The PRESIDING OFFICER. The Senator from Washington.
Ms. CANTWELL. Mr. President, I come to the floor to defend a woman's
right to choose. I am beyond frustrated that this debate is even
happening tonight. According to statistics from the Rape, Abuse, and
Incest National Network, there are over 433,000 victims of rape and
sexual assault on average
[[Page S6475]]
each year in the United States of America. They have found that every
73 seconds an American is sexually assaulted.
When someone wants to chip away at the rights of American women to
have access to healthcare, my State is going to take it personally. My
State has codified Roe v. Wade into law. They have fought for these
rights in a vote by the people of our State in the 1990s. So with a
process today that is unfolding here in the Senate where someone wants
to roll back those rights and propose a different way of life in the
United States of America, we women are going to fight back.
The truth is, the majority of Americans support a woman's right to
choose. The majority of States support a woman's right to choose, in
what their public believes. It is a minority and a minority on this
floor who does not support that and would love to have a judicial
process that shortcuts active debate about the issues that are in the
mainstream views of Americans. These statistics and these issues are
almost 50 years of law about a healthcare delivery system that allows a
woman to make this choice. It is from those statistics I just read you.
There are darn good reasons they want to make those choices.
The fact that people have been out here characterizing this debate
and going back in history and talking about all of these things that
have happened to previous judicial nominees--yes. Yes, there has been a
lot of back-and-forth. But the main point is, the other side of the
aisle wants to nominate people who are out of the mainstream view of
America.
Any of my colleagues who came here and tried to argue that Judge
Barrett and her views are in the mainstream, I guarantee you, the
judiciary process that we had with the Senate Judiciary Committee
definitely did not prove that. In fact, the President's words and the
actions of this body in nominating people whose views are out of the
mainstream--because this is 50 years of settled law, and you are trying
to override it by putting somebody on the Supreme Court who will say
otherwise.
Adding insult to injury to this whole process is the fact that we are
not really doing our day job. We are not dealing with the economic
crisis that is facing America. I am a little tired of that too. I am a
little tired of every time we have a debate about our economy--whether
it was the fiscal cliff or the big budget deal or last year's budget
deal or any budget deal--we never can deal with our economy because the
other side of the aisle wants an amendment to take away a woman's right
to choose and limit it.
I couldn't even get language in the last COVID package to get Boeing
workers more training programs because the Republicans were so
concerned that the definition of a new healthcare proposal had to have
a Hyde amendment attached to it because otherwise they couldn't support
it because it is so Richter scale on our side of the aisle.
I will give my colleagues on the other side of the aisle--there are
about 10 States that basically have a population that only 40 percent
or maybe even less support a woman's right to choose. I get it. That is
a hard State to come and represent here if the courts have already
determined that this is settled law. It might be hard for you. But the
majority of Americans and the majority of the States and the courts
have already decided this.
Yes, you are going to continue to pursue judicial nominees who are
out of the mainstream of the American people, and you are doing so
instead of your day job--focusing on the economy of the United States
during a COVID pandemic.
It wasn't surprising that this summer, as we were on recess, the
Seattle Times said: What is happening? Wall Street is flourishing, but
Main Street is struggling.
Basically, they raised a question while everyone was at home: What
are we going to come do about the economic situation? We know we have
had tremendous loss. Forty percent of restaurants are at risk of
remaining closed and remaining closed permanently. We know that one in
five small businesses could be closed by 2021--a devastating impact to
our economy--and we know that 25 percent of those businesses need
additional resources to survive.
All of those things were known, and they were known all summer long,
and nobody wanted to discuss them because the other side didn't want to
get serious about a robust package. The package they put on the floor
so they could go home and say a week before the election ``Here is what
we tried to vote on'' did not take care of small businesses that got
left out.
It certainly didn't talk about the minority businesses that needed
access to capital. The last bill did a decent job of helping businesses
that had a connection to a banker, but if you didn't have a connection
to a banker, you didn't get as much help. We should have sat down and
fixed this.
We should have sat down and made sure that we were fixing what needed
to be fixed to help our economy in the midst of a COVID pandemic, but,
no, true to form to the other side of the aisle, it is way more
important to go after a woman's right to choose. That is way more
important than these economic issues
I am going to tell you that we are not going to lower our voices on
the importance of our economy or how important it is to help women. We
are not going to sit silently and talk about a minimal economic package
to help American businesses. We are going to talk about what American
businesses need, and we are going to talk about how we can help protect
a woman's right to choose.
The nominee before us--I have listened to many speeches today. She
has tremendous intellect. She does have tremendous intellect.
Apparently, that is a strong suit of the President of the United
States. He has strong intellect. Yet I have seen the most major assault
on the rule of law by anybody in an administration in my time in the
U.S. Senate--throwing out fact-based decisions, not guaranteeing due
process, not making sure that we have freedom of the press, corrupt
government officials whom they won't even get rid of, not supporting
civil rights that should be enforced at the Federal level. It is not an
issue to be left to the States. The Attorney General of the United
States and the Members of this body should enforce the civil liberties
of Americans. It is not an issue to ignore, and you certainly don't
call out the military when they want to express their opinion and
concern about this issue.
The President of the United States has a long record. He has great
intellect, but he has run over the rule of law, and he has set a
precedent for other people in his administration also not to follow the
rule of law.
What I find so challenging about Judge Barrett's record and the
issues before us is that women's issues and these issues that we face
that are so important for us to get done are about a woman's access to
healthcare. I can't even imagine going back to Griswold v.
Connecticut--a time when we had to fight just to have contraception.
That is what the privacy rights were all about. It was about a Court
that decided and found in our Constitution that in multiple places,
there are a penumbra of rights that give a privacy right to a woman to
control her own body. Those privacy rights are about my constitutional
rights. They are about what is guaranteed to me in the Constitution. It
is about our finding out whether a nominee is going to hold them up,
particularly at a time when we have had almost 50 years of laws that
have protected those rights.
People want to have a rushed 30-day session--beginning to end--speed-
court nominating in the Mansfield Room instead of hearing from groups
and organizations about their concerns on this nominee. That is just
not good for our overall system, it is not good for the issues that we
face moving forward, and it is certainly not good for women in the
United States of America.
I do not appreciate the rush to confirm Judge Barrett. Given my
State--yes, my State codifying Roe v. Wade into statute in 1990 makes
me a pretty active person who wants to see a judiciary that upholds
that. I want to see and understand where this nominee is.
But anyone who comes to the floor and says that she is in the
mainstream views Americans when we know what her views have been in
opposition to Roe v. Wade and, as I said, having Griswold v.
Connecticut be a correctly decided decision--even Justices Thomas,
[[Page S6476]]
Alito, and Roberts have said it was correctly decided. Judge Barrett is
out of the mainstream by not saying that.
She has been critical of the Affordable Care Act and its issues that
we want so much to cover preexisting conditions. She refused to say
whether Medicare and Social Security were constitutional; this issue of
same-sex marriage, where two in three Americans support this; and
refusing to say whether she thinks the Lawrence v. Texas decision,
which struck down a law criminalizing consensual gay sex, was correctly
decided.
These are issues about whether we are going to move forward as a
nation with laws that people have come to expect and that they planned
their lives around.
There are healthcare institutions all across the United States--even
in States that don't fully support a woman's right to choose--that are
delivering healthcare to women, and we are going to start down a
process of taking those away?
Then there are some people who represent, on the other side of the
aisle, States that are at 50 percent or 60 percent in support of a
woman's right to choose. They are going to rationalize in their head
that, oh, well, somehow I don't know where exactly Judge Barrett is
going to be on these issues, or, I didn't get a confirmation that she
truly believes that they are settled law, and I believe in the penumbra
of rights in the Constitution.
When you say you believe in the penumbra of rights in the
Constitution, you are saying you believe in my constitutional right to
privacy. You say you believe that I have the right to make my own
healthcare decisions.
With a few days before the election and a Supreme Court case in
California v. Texas, where the ACA and other healthcare decisions are
going to be on the table, it is not good enough to not understand the
judicial philosophy of this nominee and whether that is in the
mainstream views of people in the United States of America. Too much is
at risk--too much that we deserve to know the answers to.
I am glad my colleague from Delaware brought up Justice Ginsburg's
quote because that says it all. Everybody keeps saying that she didn't
have to say anything, that she didn't take notes, that she is all good,
that she didn't have to say anything. That is not what it is all about.
That is not what Judge Ginsburg said. Judge Ginsburg told people
exactly what she believed. She told people that she believed in a
woman's right to choose. As my colleague from Delaware said, she told
people that these issues were too important to a woman. So I don't
understand, when Justice Ginsburg basically clarified what she
believed, why Judge Barrett wouldn't clarify what her judicial
philosophy is.
It is worth reading again.
Justice Ginsburg said that the decision of whether or not to bear a
child is central to a woman's life, to her well-being, to her dignity.
It is a decision she must make for herself, and when government
controls that decision for her, she is being treated as less than a
full human who is responsible for her own choices.
These women who have been the subject of the most heinous acts--and
all women--deserve to make their own healthcare choices. We in this
body should not be making this decision at this moment. We should be
taking care of our COVID problem, moving forward with solutions that
will help the American people, and letting them respond to this issue.
This issue will continue.
I just ask my colleagues to think about what has already happened
with the Affordable Care Act. Those States that didn't want to support
the Affordable Care Act and didn't support the Affordable Care Act
later, after it passed, then implemented it. A few States, just
recently, made the switch and covered more people under Medicaid.
What you are really doing is holding your States back from having
access to healthcare. Eventually, as I said, the general public in the
majority of States will support a woman's right to choose. Eventually,
this will be settled, with every State supporting this. The question
is, How long are you going to hold up the healthcare choices of people
in the United States?
I ask my colleagues to turn down this nomination. I ask my colleagues
to stop nominating people who are out of the mainstream of the American
view on healthcare, which is so important to their daily lives.
I yield my remaining postcloture time to the Democratic leader.
The PRESIDING OFFICER (Mrs. Loeffler). The Senator from Tennessee
Mrs. BLACKBURN. Madam President, I really appreciate the opportunity
to come to the floor and have time to talk about this nomination.
As a member of the Senate Judiciary Committee, I want to express my
appreciation to Chairman Lindsey Graham for the great work that he has
done and to Leader McConnell for the way he has given us the
opportunity to work through this process of completing this
confirmation.
As I have talked to Tennesseans from one end of our State to another,
I have heard from them, time and again, how important they think it is
to have a judge and a Supreme Court Justice who is not an activist.
As we went through the hearings last week, I will tell you that I
thought it was so interesting. One of our colleagues said: Oh, we fear
that you will usher in an era of conservative activism.
They fear that, but do you know what? Conservatives do not want
activist judges of any stripe. They want constitutionalists. They want
judges to abide by the rule of law. They want Supreme Court Justices
who will call balls and strikes. That is what those of us on this side
of the aisle want--Republicans, Conservatives, and Independents, who
are there in the center. Do you know? That is what they see in Judge
Barrett.
I have found it so interesting, as we have worked through this
process, that people, whether they are Democrat, Independent, or
Republican, have said: I was so impressed with her--the way she
retained knowledge and information, the way she represented her views,
the way she talked about the law and precedent, the way she talked
about the Constitution, the way she talked about her relationship with
Justice Scalia. They also liked the way her students and her professors
and her colleagues spoke of Amy Coney Barrett. They like that because
these are people with whom she works. Her children are in school with
them. They are in church together. So they have come to know her
through the many different and varied facets of her life, and they
appreciate who she is and the life that the Barrett family is leading
and how that represents their thoughts and their beliefs.
There are a couple of things I would like to discuss and points of
clarity that deserve to be made in this debate.
As we were in committee, our friends across the aisle chose to take
much of their time not to get to know Judge Barrett or to question her
about opinions that have been written, and she has written right at 100
opinions or has writings that have been published. They chose to take
their time to discuss the Affordable Care Act and to talk about
individuals and the concern for losing healthcare.
I think it is right that the American people know we would all like
for every American to have access to affordable healthcare. I think we
can say that it is a goal of ours. How we get there and what the system
looks like is going to be something that is, really, quite different.
They are very wedded to the Affordable Care Act and would really like
to push this all the way to government-run healthcare. That is their
goal.
As many people watched the hearings, they asked: Why did they keep
talking about the Affordable Care Act?
Of course, the case that is coming before the Supreme Court is a case
on severability. It is not about the constitutionality of the ACA. So
it was curious to them.
I would offer that the reason they probably continued to talk about
it was that our friends across the aisle, those in the Democratic
Party, are very emboldened right now. They feel as if they are going to
do a clean sweep and that they are going to keep the House, take the
Senate, and take the White House and that, when they do, they will have
a very aggressive, 100-day agenda, and we have heard quite a bit of
conversation about this 100-day agenda: statehood for DC and Puerto
[[Page S6477]]
Rico. They want to abolish the electoral college. They want to begin
implementing the Green New Deal. They are going to repeal the Trump tax
cuts and implement a new corporate tax. The list goes on and on. The
list includes what they want to do with healthcare, which is to have a
government-run, government-controlled system.
See, they don't want anybody to tell them they can't do this. They
don't want constitutionalists on the Supreme Court who are going to
stop them from doing this.
When you look at the numbers and at what the numbers tell us, you
have right at 8\1/2\ million people right now who are enrolled in the
Affordable Care Act--or the ObamaCare program--8\1/2\ million. Yet here
is the outlier in that: In order to reach their goal of government-run
healthcare, which is, basically, a Medicaid program for all, what you
would have to do is strip away the health insurance from 153 million
Americans who have employer-provided health insurance or who have
purchased healthcare on the open market. Those are 153 million
Americans. Plus, you would have to take away the Medicare benefits from
57 million Americans who have paid into Medicare with every paycheck
they have earned all of their working lives.
We have 66 million Americans who are currently in Medicaid. So think
of what is going to happen if, on top of the 66 million who are in the
Medicaid delivery system, you take everybody from Medicare--57
million--and they become part of that pool. Then you will have taken
health insurance away from 153 million Americans. That is where they
are headed. That is their goal.
Quite simply, when they were going through the process with the
Affordable Care Act and you had President Obama and Vice President
Biden, what we would hear many times from some of the Democratic
leaders was, ``Well, ObamaCare is a stop along the road to government-
controlled healthcare.''
That is their goal, and how dare we have a Supreme Court that would
get in their way.
That is also why they continue to talk about court-packing. While
they are trying to redefine the meaning of the word ``court-packing''--
oh, let's not have it be offensive--oh, no--they are wanting to expand
the Court so they can get their way.
As my friends across the aisle come down and talk about this
nomination, I think it is important that we look at the reason behind
some of their work and their words and where they think they are going,
because they have not made this nomination about Judge Barrett.
They have not made it about the Supreme Court; they have made it
about themselves. They have made it about themselves, their wish list,
their desire for activist judges.
How about that? They fear conservative activism. What are they going
for? Liberal activism. That is the kind of judge they are looking for,
not a constitutionalist, not somebody who calls balls and strikes. They
are looking for somebody who is going to do their work for them so they
don't have to pass something through Congress. They don't have to deal
with ``we the people.'' They want to just say: Well, according to the
Supreme Court, this is the law of the land.
So that is why they chose not to get to know Judge Barrett, and I
will tell you I found her to be one of the most impressive women I have
ever had the opportunity to get to know. And she made it very clear,
yes, she is qualified to sit on the Court. Her record really speaks for
itself.
But as we saw, the judge didn't rest on her laurels. She was well
prepared. She was patient, thorough, respectful, and she was a credit
to her profession. I wish I could say the same for my Democratic
colleagues about being thorough and respectful, because I found it to
be very disrespectful of the process, of the institution, and of Judge
Barrett that they chose not to show up for our hearing. They were not
there. AWOL. Gone. Didn't come.
And you see, why did they do that? Judge Barrett, a highly qualified,
highly skilled female, is just not the right kind of woman. She does
not submit to the leftist agenda so, therefore, they don't see her as
the right kind of woman.
And as we know from many of their antics, some from them and some
from their echo chamber, the mainstream media, they feel as if a woman
who is pro-life, pro-family, pro-religion, pro-business--that kind of
woman, in their eyes, does not deserve a seat at the table.
I find it so interesting. My colleagues across the aisle speak often
of how they value diversity, and I agree. Diversity is a strength, and
we should seek to hear all voices. That should be a goal--to hear from
everyone. But when it comes to diversity of viewpoint and hearing from
a conservative woman, an independent woman, a right-of-center woman,
this side of the political spectrum--when it comes to diversity of
viewpoint, what do they do? They repeatedly choose intellectual
isolation--intellectual isolation. Their mind is made up. They are in
total submission--total submission to the agenda of the left.
So do not confuse them. Don't confuse them with facts. Don't confuse
them with a counterpoint. Don't look at them and say: How about being
open minded? You know, what you are saying might be true, but what if
this is true? Would that change the outcome?
I find it so very sad that what they have done is to choose
intellectual isolation. I find it very sad that that is what they are
role-modeling for young adults, college students, high school students.
Don't hear out somebody who is different from you. Don't show respect
or a listening ear to someone who is different from you. Don't take the
time to provide the common courtesy of listening to what someone may
have to say.
To my friends across the aisle, I know many of you, and some of you I
served with when I was in the House, and may I just offer a thought--
that you are better than that. This Chamber is better than that. And
individuals who are nominated for judgeships, for Justices on the
Supreme Court, they deserve to be heard.
So I would encourage my colleagues to think this through. Judge
Barrett is moving through this process. We are going to confirm Judge
Amy Coney Barrett to the U.S. Supreme Court, and as we do this, we know
that she is going to take that seat as a capable, competent, skilled
jurist, and we know that she is going to be someone who is going to sit
on that Court, and, yes, she is going to call balls and strikes.
Our friends need not worry about an era of conservative activism. Let
me assure them, conservatives don't want that any more than they want
an era of liberal activism.
What they want is a constitutionalist Court that is going to be fair
to everyone and is focused on equality and justice for all.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Braun). Without objection, it is so
ordered.
Mr. SCHUMER. Mr. President, I yield 1 hour of my remaining
postcloture time to Senator Murphy.
The PRESIDING OFFICER. The leader has that right.
Mr. SCHUMER. I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, every woman in this country owes a debt of
gratitude to my friend, Congresswoman Patsy Takemoto Mink. Americans
probably know Patsy best for her fiery advocacy to pass title IX into
law. This landmark piece of gender equity legislation, which now bears
her name, has benefited millions of women and girls across our country.
But I would wager that very few people know about how Patsy changed
the course of history for women's equality and helped to enshrine the
right of women to control our own bodies in the Supreme Court.
Let me tell you a story. In 1970, the same year that Hawaii became
the first State in the country to decriminalize abortion, Patsy did
something no one had done before. She made women's rights a key issue
in a Supreme Court nomination when she testified against the nomination
of Judge G. Harrold Carswell.
[[Page S6478]]
In her testimony, Patsy brought up Judge Carswell's decision in the
case of Ida Phillips, a woman denied a factory job because she had
preschool-aged children. Of course, no such rule applied to fathers.
Judge Carswell, along with 10 of his colleagues on the Fifth Circuit
Court of Appeals, had refused to hear Ms. Phillips' case. Patsy told
the Senate Judiciary Committee: ``Judge Carswell demonstrated a total
lack of understanding of the concept of equality. . . . His vote
represented a vote against the right of women to be treated equally and
fairly under the law.''
When a Republican Senator tried to defend Judge Carswell by pointing
out that 10 other judges had also voted to refuse to hear the case,
Patsy responded: ``But the other nine are not up for appointment to the
Supreme Court.''
Patsy understood the critical role the Supreme Court plays in the
lives of every American. She pointed out to the committee that ``the
Supreme Court is the final guardian of our human rights. We must rely
totally upon its membership to sustain the basic values of our
society.''
Patsy's testimony marked a turning point in Judge Carswell's
nomination, which the Senate ultimately rejected. Her courageous action
paved the way for President Richard Nixon to appoint Justice Harry
Blackmun to the Court.
Then, 3 years later, Justice Blackmun wrote the landmark decision in
Roe v. Wade, recognizing a woman's constitutional right to control her
own body. Justice Blackmun, unlike Judge Carswell, understood the right
of women to be treated equally. Upon his retirement, he observed Roe
was, ``a step that had to be taken. . . . toward the full emancipation
of women.''
This story about Patsy is not very well known, but it underscores how
one person can make a difference and how one vote on the Supreme Court
can make a difference.
During his years on the Court, Justice Blackmun became a reliable
vote for racial and gender equality, and his decisions reflected an
understanding of how the Court's decisions impact the lives of millions
of Americans.
If Judge Carswell had been confirmed to the Supreme Court instead of
Justice Blackmun, Roe v. Wade would not exist as we know it, nor would
a host of civil rights protections for students and racial minorities.
Our Nation finds itself at a similar judicial crossroads today as we
debate whether Judge Amy Coney Barrett should replace Justice Ruth
Bader Ginsburg on the Supreme Court. The choice we face as Senators is
clear. It is the same choice Patsy Mink presented to the Senate 50
years ago. We can choose to protect equality for women, healthcare for
millions, and other basic values of our society, as Patsy put it, or we
can choose a Justice selected to do precisely the opposite: strike down
the Affordable Care Act, overturn Roe v. Wade, and continue to decide
cases like her conservative mentor, Justice Antonin Scalia. This is
neither an abstract nor a hypothetical choice.
President Trump repeatedly promised to appoint a Justice who would
eliminate the ACA and Roe v. Wade, and he took only 3 days after
Justice Ginsburg's death to pick Judge Barrett to fulfill this promise.
His selection was easy because Judge Barrett had already publicly
signaled that she opposed the Affordable Care Act and reproductive
rights.
Judge Barrett is on record criticizing Chief Justice Roberts for, as
she put it, ``push[ing] the Affordable Care Act beyond its plausible
meaning to save the statute'' in a case upholding the ACA in 2012.
Justice Scalia wrote the dissent in that case.
She also signed a newspaper ad committing to ``oppose abortion on
demand and defend the right to life from fertilization.'' The same ad
called for ``an end to the barbaric legacy of Roe v. Wade.''
With Judge Barrett, President Trump and Senate Republicans know
exactly the kind of vote they are getting on the Supreme Court. That is
why they are rushing Judge Barrett onto the Court through this
hypocritical, illegitimate process.
In a little over 2 weeks, the Supreme Court will hear oral arguments
in California v. Texas--a lawsuit where the Trump administration and 18
Republican State attorneys general are asking the Court to invalidate
the Affordable Care Act, like Justice Scalia voted to do in two earlier
cases.
My Republican colleagues know they can count on her to provide the
decisive fifth vote on the Supreme Court to strike down the ACA, to
help them win through the courts an outcome they tried and failed to
achieve 70 times--70 times--in Congress.
The consequences of Judge Barrett's vote to strike down the ACA would
be catastrophic. It would be catastrophic for the 20-plus million
Americans who obtain health coverage under the ACA and the 100 million-
plus Americans who would lose the law's protections for people living
with preexisting conditions.
These are the types of real-world consequences Justice Ginsburg
placed at the core of her judicial philosophy and approach to the law,
which her conservative colleagues often ignored.
We saw this time and again in Justice Ginsburg's classic dissents in
cases like Shelby County v. Holder, Ledbetter v. Goodyear Tire, and
Epic Systems v. Lewis. Judge Barrett sees things much differently.
When my Democratic colleagues and I pressed her about how she would
take the real-world impact of millions of people losing access to
healthcare into account, she said those are ``policy consequences'' for
Congress to address.
She also tried to parry our questions by using terms like
``severability'' and testifying that protections for people with
preexisting conditions were not at issue in the Trump administration's
lawsuit. She ignored the fact that more than 100 million people with
preexisting conditions would be harmed if the lawsuit succeeds.
Not an issue? Give me a break.
My Republican colleagues hope that the American people will accept
these weak attempts to divert our attention, but they can't obscure the
real human costs of striking down the ACA. It is why my Democratic
colleagues and I have shared the stories of people Judge Barrett would
harm when she votes to strike down the ACA.
I want to share their stories again because their lives are what is
at stake in this nomination fight.
Jordan Ota, an elementary school teacher from Ewa Beach, has PNH--a
very rare blood condition. To treat it, she receives infusions of a
medication that costs around $500,000 per year without insurance. If
Judge Barrett strikes down the ACA, Jordan's insurance company could
put a lifetime cap on benefits, leaving her without coverage for her
lifesaving medication. Jordan's father Dean told me that ``without the
medicine, she will die.''
Kimberly Dickens from Raleigh, NC, couldn't afford health insurance
until the Affordable Care Act became law. Kimberly used her new
insurance to get a checkup and a mammogram that found her breast
cancer. With her health insurance, Kimberly was able to get a
mastectomy and has been cancer-free ever since. Kimberly said:
The ACA saved my life. . . . It scares me to think: If I
didn't have insurance, how far advanced would the cancer have
grown?
These powerful stories demonstrate the real-world danger of Amy
Barrett's judicial philosophy if she is confirmed to the Court. But
their healthcare is not the only fundamental right at risk for
Americans. We know this because Judge Barrett has also aligned herself
with the conservative wing of the Court, long led by her mentor,
Justice Scalia.
At her nomination ceremony, Judge Barrett announced that Justice
Scalia's ``judicial philosophy is mine too.'' Aligning herself so
closely with Justice Scalia has implications for a whole host of rights
and protections the Court has granted over the years.
Justice Scalia, for example, wrote dissents in the landmark cases
recognizing LGBTQ rights from Romer v. Evans to Lawrence v. Texas, and
United States v. Windsor. Most recently, he wrote a dissent in
Obergefell v. Hodges, sharply criticizing the majority for recognizing
a right to same-sex marriage that in his originalist view was not in
the Constitution.
Because Judge Barrett calls herself an originalist and shares Justice
Scalia's judicial philosophy, his decisions provide a preview of how
she would have ruled in those cases.
For example, although the Supreme Court has already affirmed marital
[[Page S6479]]
rights for LGBTQ Americans, Judge Barrett's radical views on precedent
put these rights at risk. Judge Barrett has argued that as part of her
duty, a Justice should ``enforce her best understanding of the
Constitution rather than a precedent she thinks clearly in conflict
with it.''
Clearly, Judge Barrett's confirmation would put Obergefell at risk,
and her would-be colleagues on the Court have taken notice.
During this nomination process, Justices Thomas and Alito--also
originalists--released an alarming statement in Davis v. Ermold, which
the Court declined to review. But these two Justices criticized
Obergefell for ``read[ing] a right to same-sex marriage into the 14th
Amendment, even though that right is found nowhere in the text.''
In effect, these two Justices invited a challenge to Obergefell by
calling it ``a problem that only [the Court] can fix.''
This type of signaling is a dangerous and increasingly common
practice among the Court's conservative wing. By making their views
known in this way, these Justices are inviting would-be litigants to
bring challenges to the Court so the Court can then use those
challenges to invalidate landmark precedent, which is what happened in
Janus v. AFSCME.
As a member of the Seventh Circuit, Judge Barrett has also
demonstrated a willingness to signal her views on precedent that could
have significant implications if she is confirmed to the Supreme Court.
One example came in Price v. City of Chicago, where Judge Barrett
joined a decision that upheld the so-called abortion clinic buffer zone
law. The decision made clear that her circuit court was forced to
uphold this law under the Supreme Court precedent, but it signaled a
strong disagreement with that precedent. The decision, which she
joined, criticized the precedent as ``incompatible'' with the First
Amendment and ``impos[ing] serious burdens.''
Judge Barrett's alignment with Justice Scalia, her radical views on
Supreme Court precedent, and her disregard for real-world impacts on
her decision making as a judge show how many rights and protections are
at risk: LGBTQ rights, voting rights, women's equality, healthcare--you
name it.
These rights didn't just materialize out of thin air. They came after
hard-fought battles and tremendous sacrifices from trailblazers like
Patsy Mink and Ruth Bader Ginsburg.
When Patsy called the Supreme Court ``the final guardian of our human
rights'' that ``sustains the basic values of our society,'' she deeply
understood what that meant--for women's equality, for civil rights, and
for so many other rights.
Republicans understand that clear majorities of Americans support the
ACA, a woman's right to choose, and the right for LGBTQ couples to
marry. Yet, because Republicans fear they are losing the election, they
are erasing Judge Barrett's nomination through a hypocritical and
illegitimate process to put her on the Court for life before voters can
make their voices fully heard.
But we have all seen the news coverage of thousands of voters
standing in line for hours on end in the cold and rain to make sure
their voices are heard and their votes are counted.
Clearly, the voters understand what is at stake. They are doing their
part. Now it is time for the Senate to do ours by rejecting Judge
Barrett's nomination to the Supreme Court.
By doing so, we can stand up for what Patsy Mink called the ``basic
values of society'' and against Donald Trump and Senate Republicans'
assault on healthcare, a woman's right to control her own body, and
LGBTQ rights, among so many others.
This nomination fight is close to being over, but the broader fight
for the future of our Nation continues
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, I rise today to express my strong opposition
to the nomination of Amy Coney Barrett to replace Justice Ruth Bader
Ginsburg as an Associate Justice of the U.S. Supreme Court.
The Senate has never confirmed a Supreme Court nominee while a
Presidential election was already underway. Indeed, this is the
situation before us with early voting taking place in multiple States
and over 50 million ballots already cast. So while those in the far-
right fringe might be cheering these lifetime appointments, the vast
majority of Americans are the ones who lose out, and they do not get a
fair say.
Make no mistake. Today's vote isn't about one individual; it is about
taking away healthcare from 20 million Americans in the midst of a
pandemic. It is about eliminating protections for people with
preexisting conditions that over 100 million Americans depend upon. And
that is what we fear happening once this vote is cast, the lifetime
appointment is given, and the case is heard after the election.
President Trump and his allies purposely set the schedule that way.
They didn't want American voters to have any recourse to take out their
anger at those responsible for taking away their healthcare.
My Republican colleagues should listen to their own words. Go back
and look at what you said about Merrick Garland and apply it
consistently.
Our fidelity is to the Constitution, not a caucus, not to the
Federalist Society, not to special interests. Everyone deserves equal
justice under the law. The Supreme Court was not designed to become an
extension of the Republician National Committee.
The chairman of the Judiciary Committee pledged, in his own words:
``If an opening comes in the last year of President Trump's term and
the primary process has started, we'll wait till the next election.''
The obvious truth is Republicans broke their word. This process
itself is broken. Their pattern of obstruction and abusive partisanship
over the years threatens the credibility of the Supreme Court and
pushes Senate norms of fairness and accountability beyond the brink.
My decision, however, to oppose this nomination rests not only on
this unprecedented use and abuse of power but also on the standard that
I have applied to nominees of the Supreme Court on numerous occasions.
It is a simple test--one drawn from text, the history, and the
principles of the Constitution.
As I have said during previous confirmations, a nominee's
intellectual gifts, experience, judgment, maturity, and temperament are
all important. But these alone are not enough.
In addition, a nominee to the Supreme Court must live up to the
spirit of the Constitution. A nominee must not only commit to enforcing
the laws but to doing justice. A nominee must give life and meaning to
the great principles of the Constitution: equality before the law, due
process, freedom of conscience, individual responsibility, and the
expansion of opportunity.
It is these principles that ensure full and fair and equal
participation in the civic and social life for all Americans. A nominee
to the Supreme Court must make these constitutional principles resonate
in a rapidly changing world.
My colleagues on the Judiciary Committee spent a great deal of time
and effort questioning Judge Barrett and trying to elicit responses
about her basic worldview and judicial philosophy. Unfortunately, her
answers were largely nonresponsive, and, at times, she demurred on
issues on which she herself had already made public statements.
Despite her lack of responsiveness, Judge Barrett's judicial record
and public statements suggest that she does not meet my test, and her
placement on the Supreme Court will further tilt the Court away from
these constitutional principles.
In understanding how Judge Barrett would not meet my test, I am
cognizant that she will follow in the mold of her mentor Justice
Antonin Scalia, with whom she shares an originalist approach to
constitutional interpretation.
In her article titled ``Congressional Originalism,'' Judge Barrett
talks about the core principles underpinning originalism. The first
principle, she writes, is that ``the meaning of the constitutional text
is fixed at the time of its ratification.'' The second is that ``the
historical meaning of the text `has legal significance and is
authoritative in most circumstances.' ''
The trouble is that the Founders and Framers did not leave us a
blueprint to
[[Page S6480]]
answer every new question of law. Nor did the delegates to the
Constitutional Convention demand that all future judges be
``originalists.'' The laws and norms when the Constitution was ratified
would alienate and exclude many Americans today, particularly women and
racial and other minority groups.
We have seen the devastating effects of the originalist line of
thinking in the Supreme Court's recent history. A focus on this mode of
interpretation has played a crucial role in undoing labor rights,
curtailing environmental regulations, and allowing unlimited dark money
to influence politics. In the end, a strict originalist approach tends
to favor the executive over the individual, the employer over the
employee, and the corporation over the consumer.
Also relevant to whether Judge Barrett passes my test is her
criticism of stare decisis, a core concept in Supreme Court
jurisdiction under which a court generally adheres to its prior
decisions--absent a special justification more than a belief that the
precedent was wrongly decided.
Part of the reason that maintaining precedent is so important is that
it ensures the rule of law and legitimacy of the judicial process. As
Alexander Hamilton explained in Federalist No. 78, there is a long
tradition of being bound by precedent, in his words, ``[t]o avoid an
arbitrary discretion in the courts.''
A practical reason for following precedent is that--once it goes into
effect, people then organize their lives based on the law and make
decisions with the assumption that that law will stay in place.
The public expects judges to understand this need for stability and
to approach the law with the appropriate humility and respect for its
authority. They do not want judges to elevate their own views over the
law or to change the law simply because the composition of the court
changes.
That is why, in deciding to overrule precedent, a court generally
undergoes a serious analysis of numerous factors, including its
consistency with other decisions, the reliance interests at stake, and
historical developments since the decision in question.
Therefore, I am troubled that Judge Barrett's writings indicate that
she is more likely to see opportunities to revisit precedent than other
judges. In an article titled ``Precedent and Jurisprudential
Disagreement,'' Judge Barrett argues that there is a weaker presumption
of stare decisis in constitutional cases, which could make these cases
more vulnerable to review
In another article titled ``Stare Decisis and Due Process,'' Judge
Barrett argues that the current standard of stare decisis has become
too rigid in modern times and favors a more flexible stance on
reexamining precedent.
In particular, I take seriously that Judge Barrett indicates that she
is more willing to elevate her originalist interpretation over
precedent. Overall, when there is a tension between precedent and
jurisprudential commitment, Judge Barrett writes that she, in her
words, ``tend[s] to agree with those who say that a justice's duty is
to the Constitution and that it is thus more legitimate for her to
enforce her best understanding of the Constitution rather than a
precedent she thinks is clearly in conflict with it.''
She similarly casts doubt on the importance of reliance interests--
which are the interests of stakeholders that depend on the continuity
of an affirmed law or right--stating that ``when precedent clearly
exceeds the bounds of statutory or constitutional text, reliance
interests should figure far less prominently in a court's overruling
calculus.''
Judge Barrett's views on originalism, textualism, and stare decisis
could bring about a seismic shift to the Supreme Court, reshaping
modern American life and weakening rights to which many Americans have
become accustomed. Given that Judge Barrett's approach is shared by
several of her future colleagues, she will help move the Court's center
of gravity to the far right.
I will now walk through issues in Judge Barrett's judicial record
that inform how she, in conjunction with fellow conservative judges,
could and likely will rule on future cases.
I am deeply troubled about the implications of this nomination on the
Affordable Care Act, the ACA. The ACA has given individuals and
families control over their own healthcare and has brought the
uninsured rate to a historic low. The ACA has been the law of the land
since 2010 and is now woven into the fabric of our healthcare system.
Despite consistent sabotage of the ACA by the Trump administration,
premiums for health insurance plans on the individual marketplaces have
decreased for the second year in a row. Yet President Trump and my
Republican colleagues want to repeal the ACA in its entirety, taking
with it protections for people with preexisting conditions, bans on
lifetime and annual limits on coverage, billions of dollars in tax
credits to make coverage more affordable, and efforts to close the
doughnut hole for seniors needing prescription drugs, just to name a
few key provisions.
The ACA is a relevant--indeed, critical--aspect of the nomination
because the Supreme Court will begin hearing oral arguments in the case
of California v. Texas on November 10, which will decide the fate of
the ACA. This is not a theoretical debate over how Judge Barrett may
interpret a case in the future. This is a real case that could
eliminate health insurance coverage for millions of Americans and
increase costs for everyone in the next year.
It is no surprise that my Republican colleagues are breaking with
their own precedent to consider this nominee with a week to go until
the election. This is their chance to repeal the ACA once and for all.
In fact, President Trump has said many times over in the last several
months that he hopes the ACA is overturned by the Supreme Court,
referring specifically to this case. And don't just take his word for
it. The Department of Justice, under his leadership, has taken the
extraordinary step of deciding against defending the law of the land,
the ACA, and instead siding with the plaintiffs in arguing that the ACA
and its protections for people with preexisting conditions, among other
provisions, is unconstitutional. President Trump and congressional
Republicans are very clear about their intentions. They want to repeal
the ACA. They have been saying it for a decade.
They failed to do it when they had complete control of the White
House and Congress because of overwhelming public opposition to their
efforts and a few brave votes. They are relying on the Supreme Court to
do their dirty work for them and get rid of the ACA. They even
petitioned to have the case heard by the Supreme Court after the
election, knowing that the American people would not be happy if the
Court decided in their favor and struck down the ACA.
It is not hard to follow the logic here. President Trump and
congressional Republicans have been working methodically to lead us to
this moment for years.
Now I will return to the nominee for a moment. President Trump has
made it clear that he intends to have the courts do his bidding for him
and has committed to nominating judges who will side with him.
In her hearing, Judge Barrett refused to discuss how she may handle a
case on the ACA. However, in early 2017, she authored an article
criticizing the ACA, specifically arguing that the 2012 Supreme Court
case, NFIB v. Sebelius, was wrongly decided when a 5-to-4 majority
ruled that the ACA's individual mandate was, in fact, constitutional.
In particular, Judge Barrett criticized Chief Justice Roberts' deciding
vote in that case, claiming that he ``pushed the Affordable Care Act
beyond its plausible meaning to save the statute.''
Instead, Judge Barrett has praised her mentor, the late Justice
Scalia, in his criticism of the ACA, as displayed in his dissents in
both the NFIB case as well as the case of King v. Burwell, related to
the tax credits provided by the ACA.
So while the nominee has not said how she may rule in the case of
California v. Texas on whether the ACA is constitutional, she didn't
have to. We already know that, had she been on the Court in 2012 when
NFIB v. Sebelius was decided or in 2015 when King v. Burwell was
decided, she likely would have voted to invalidate key elements or all
of the ACA.
[[Page S6481]]
Between her public writings and President Trump's commitment to
appointing judges who are hostile to the ACA, I don't think it is a
stretch to imagine how a future Justice Barrett may vote in California
v. Texas. The stakes for millions of Americans are just too high to
support this nomination to the Supreme Court.
I am also concerned by Judge Barrett's extreme views on the Second
Amendment and the constitutionality of limits on gun possession. To
understand her position, one must first understand the test set in
District of Columbia v. Heller. This case involved a challenge to the
District of Columbia laws that generally made it unlawful to possess an
operable firearm in the home.
Justice Scalia authored the majority's opinion and was joined by
Justice Roberts and Justices Thomas, Kennedy, and Alito.
In Heller, the Supreme Court struck those laws down and affirmed the
right to keep guns in the home for self-defense, while making clear
that rights secured under the Second Amendment are not unlimited. The
Court provided a nonexhaustive list of gun restriction laws that were
presumptively lawful, including prohibitions on firearms possessed by
felons and the mentally ill.
However, in the case Kanter v. Barr, Judge Barrett filed a dissent
laying out a rationale that could lead to the striking down of even
commonsense gun restrictions. In this case, the plaintiff was convicted
of felony mail fraud and was subsequently prohibited from possessing a
firearm under both Federal and State law.
When he challenged these laws as violating the Second Amendment, the
majority concluded that Federal and State governments were entitled to
bar firearms possession by people convicted of felonies. Judge Barrett
disagreed and concluded that barring nonviolent felons from possessing
firearms is not allowed under the Second Amendment. She reasoned that,
in her words, ``History does not support the proposition that felons
lose their Second Amendment rights solely because of their status as
felons. But it does support the proposition that the state can take the
right to bear arms away from a category of people that it deems
dangerous.''
Her position lies outside the widely accepted view that gun
restrictions for public safety are constitutional under the Second
Amendment. Her opinion puts her to the right of Justice Scalia, who
delivered the majority opinion in Heller.
Her vote in Kanter makes it more likely that Judge Barrett would vote
to strike down similar restrictions on firearm possession, even by
individuals with serious criminal histories. This outcome alone is
concerning.
Beyond that, her views, coupled with the originalist approach to the
Second Amendment endorsed by several sitting Justices, portend that a
conservative majority could create stricter standards of scrutiny for
Second Amendment cases.
It is important to note that Justice Ginsburg joined other Justices
in declining opportunities to revisit Heller's application. That
includes the denial of ten certiorari petitions this past term that
called for the Court to review, and possibly invalidate, challenges to
State gun safety laws, including State concealed-carry laws, gun permit
requirements, and assault weapons bans.
Given that only four votes are needed to grant certiorari review,
Judge Barrett could play an important role in deciding whether the
Supreme Court adds Second Amendment cases to its docket. This could
generally put commonsense gun safety laws, even those that have been
upheld for years, at an increased risk of being overturned.
Furthermore, as part of a conservative majority, Judge Barrett could
initiate major rollbacks of privacy rights in one's own home life.
During her confirmation hearings, Judge Barrett declined to say whether
the Supreme Court cases--Griswold v. Connecticut, Lawrence v. Texas,
and Obergefell v. Hodges--were correctly decided. The Griswold case
from 1965, in particular, is a foundational case in this arena.
Griswold, holding that marital privacy extends to the right to buy and
use contraception, led to cases extending privacy in other reproductive
decisions. In her refusal, Judge Barrett took a departure from past
nominees who have affirmed that Griswold is settled law, including
Chief Justice Roberts and Justices Alito, Kavanaugh, and Kagan. Instead
of giving a straightforward answer, Judge Barrett contended that it is
unlikely that a related case would come before the Court and tried to
frame this issue as well settled. However, in Little Sisters of the
Poor V. Pennsylvania, it is notable that the Supreme Court has very
recently allowed Trump administration rules to go into effect, allowing
virtually any employer to deny contraceptive coverage based on
religious and moral objections. Therefore, it is clear that this issue
is not beyond dispute and could come back before the Court.
Obergefell and Lawrence were landmark cases that established privacy
rights around marriage and intimate relations between consenting
adults, regardless of their genders. While it may be unthinkable that
these and similar rights, which are integral to a person's ability to
construct their personal and family lives, could be undermined, there
are worrying indications that they may come again before the Court.
Just this month, Justices Thomas and Alito wrote that they see
Obergefell--which granted the right to same-sex marriage--as something
the Court needs to fix and that the decision has had ``ruinous
consequences for religious liberty.''
Given that Justice Ginsburg was a crucial vote in the Obergefell 5-
to-4 opinion, it is conceivable that a 6-3 conservative Court could
chip away at equality were these rights to be relitigated.
A conservative Court may also act as a bulwark against further
expanding privacy protections in family life. For example, a case is
set to come before the Court this term, Fulton v. Philadelphia, in
which private agencies that receive taxpayer funding to provide
government services, such as foster care agencies, could be determined
to have a constitutional right to deny services to persons on the basis
of sexual orientation.
The next area of concern is how Judge Barrett's record will impact
workers' rights. Unfortunately, Judge Barrett has a record of voting in
favor of business interests. Judge Barrett voted to reject an en banc
review in Equal Employment Opportunity Commission v. AutoZone,
regarding an employer's policy of assigning Black and Latino employees
to stores in neighborhoods with people predominantly of their same
race--creating a ``Black store'' and a ``Hispanic store.'' Judge
Barrett's colleague who dissented called this a ``separate but equal
arrangement''--a type of unlawful discrimination, which was well
settled by Brown v. Board of Education.
During her confirmation hearings, she agreed that Brown was correctly
decided and beyond overruling. However, Judge Barrett's decision in
AutoZone indicates she is willing to accept racially segregated actions
by an employer, even when they would be difficult to reconcile with the
core holdings of Brown.
In another discrimination-related case, Kleber v. CareFusion, Judge
Barrett joined the en banc decision allowing an employer to post a job
application with maximum years of experience, essentially barring
applicants older in age. The majority took a narrow view that the
ambiguous language of the Age Discrimination in Employment Act did not
apply in this case, reasoning that it applied only to current employees
and not to job applicants.
In both AutoZone and Kleber, Judge Barrett has opened the door for
employers to run afoul of our country's civil rights laws. This is
particularly concerning because the Supreme Court will likely take up
cases deciding who is protected from workplace discrimination. For
example, the Court could face legal challenges in the wake of Bostock
v. Clayton County, which confirmed that title VII of the Civil Rights
Act prohibits employers from discriminating against LGBTQ people. The
majority's opinion, however, warned that future cases will determine
whether businesses could use religious freedom claims to ``supersede
Title VII's commands.''
Judge Barrett had additionally ruled against employees and gig
workers by limiting their ability to hold employers accountable through
collective arbitration in the cases, Herrington v.
[[Page S6482]]
Waterstone Mortgage and Wallace v. Grubhub Holdings. Given that
disputes around the rights of gig economy workers and the prevalence of
forced arbitration agreements are only increasing, related cases are
likely to come before the Supreme Court. It is notable, in coming to
her conclusion in Grubhub, Judge Barrett cited Epic Systems v. Lewis,
in which the Supreme Court held that arbitration agreements in which an
employee agrees to arbitrate any claims against an employer on an
individual basis--rather than as a class--are enforceable. In that
case, Justice Ginsburg took the rare step of reading a particularly
strong dissent from the bench, saying that the Court's ruling was
``egregiously wrong'' and ``holds enforceable these arm-twisted, take-
it-or-leave-it contracts--including the provisions requiring employees
to litigate wage and hours claims only one-by-one.'' Were a similar
case to come before the Supreme Court again, it is likely that Judge
Barrett and a conservative majority would take a sharp turn away from
Justice Ginsburg's legal position and make it harder for workers to get
their day in court.
I am further concerned that a 6-3 conservative majority Court could
have a drastic impact in limiting voting rights. Voter suppression has
a long history in this country, with Black voters being subjected to
violent intimidation and legally sanctioned disenfranchisement. In
recognition of this history and after decades of activism on the part
of many, President Lyndon B. Johnson signed the Voting Rights Act,
which in part required jurisdictions with a history of discrimination
to get approval before changing its voting rules. This process, known
as preclearance, was intended to prevent voter discrimination before it
occurred. This law had an immediate and positive impact in increasing
Black voter registration and turnout in the decades after it passed.
However, in Shelby County v. Holder, the Supreme Court's conservative
members argued in a 5-to-4 ruling that the preclearance formula was no
longer necessary and outdated, exactly because it was successful. In
her dissent, Justice Ginsburg famously pointed out the absurdity of the
majority's reasoning. She wrote that ``throwing out preclearance when
it has worked and is continuing to work to stop discriminatory changes
is like throwing away your umbrella in a rainstorm because you are not
getting wet.'' Predictably, the ruling in Shelby opened the floodgates
for States to enact restrictive and insidious voting laws, including
strict voter identification, excessive voter purging, and
gerrymandering. In the wake of Shelby, the awesome power of the Supreme
Court to restore or further damage voting rights has become apparent.
That is why it is troubling that in her dissent in Kanter--which I
have already referred to--Judge Barrett framed the right to vote as a
lesser right and argued for States' ability to limit civic
participation. As I explained earlier, in the Kanter case, she
disagreed with the majority's opinion that found that all individuals
with felony convictions could be legally restricted from possessing a
firearm. The majority reasoned that Second Amendment protections belong
to virtuous citizens, meaning that persons who commit serious crimes
may forfeit those rights. Judge Barrett used this opportunity to
elevate the importance of Second Amendment rights in contrast with
voting rights. After evaluating the historical record, she concluded
that ``while scholars have not identified eighteenth or nineteenth or
century laws''--and it is interesting to note that we are being guided
by 18th and 19th century laws under Judge Barrett's legal theories.
``While scholars have not identified eighteenth or nineteenth century
laws depriving felons of the right to bear arms, history does show that
felons could be disqualified from exercising certain rights--like the
rights to vote and serve on juries--because these rights belong only to
virtuous citizens.''
She explained that, in her view, gun rights are individual rights
conferred by the Second Amendment, and exclusions on nonvirtuous
citizens do not apply to individual rights. Judge Barrett then
distinguished the right to vote and sit on juries as belonging in a
different category called ``civic rights.'' She upheld the ability of
States to limit this class of rights based on virtue exclusions. In
doing so, she cited a history of State laws going back to 1820 that
excluded felons from voting. Judge Barrett, however, failed to include
in her analysis the very history of voter discrimination that led to
the passage of the Voting Rights Act and which would have given
important context to the laws that she cited, which sought to
disenfranchise individuals with criminal records.
I am also concerned because Judge Barrett refused to answer several
questions on voting and elections during her confirmation hearings.
Even when asked to confirm voter protections already enshrined in
Federal law, she was not able to give a straightforward answer. These
exchanges gave me pause that Judge Barrett has not displayed an
appreciation for the norms that make our democratic and electoral
institutions function.
I would next like to focus on Judge Barrett's potential in limiting
the authority of the Federal and, indeed, State governments. If
confirmed to the Supreme Court, Judge Barrett's judicial philosophy of
originalism is poised to diminish the role of Congress as effective
policymakers. This method of interpretation could disregard the
commonsense application and spirit of Federal laws. An example of this
is the case I discussed earlier, NFIB v. Sebelius, where the Court
decided with a 5-4 majority that the ACA's individual mandate is
constitutional. The Court, however, created a new limitation on
Congress's authority to act under the Commerce Clause. Using an
originalist approach, the Court found that Congress can regulate
commercial activity but rejected the idea it could compel an individual
to engage in it. The majority did uphold the Congress's power to do so
under its article I powers to levy taxes. Alarmingly, four dissenting
Justices--Justices Scalia, Thomas, Kennedy, and Alito--expressed the
view that neither the Commerce Clause nor Congress's taxing powers
supported the individual mandate. I will note that, had Judge Barrett
been on the Court, she likely would have joined the dissenting
Justices, and this case might have gone the other way.
The implications of this case are significant. Taken together, Chief
Justice Roberts' opinion and the dissent are centered around the idea
that the use of a Commerce Clause and/or Congress's taxing power under
the ACA was a major legislative overreach. It signals that the Court
increasingly sees these and potentially other congressional authorities
as having more limits. So in the future, when Congress tries to use its
power for a novel purpose, it may be susceptible to challenges in the
courts. If the Court continues to shift in this direction, it will have
consequences for Federal legislation beyond the ACA. As a result,
Congress's authority to robustly address climate change, civil rights,
new technology, and other national challenges through legislation could
be stymied or diminished over time.
And with Judge Barrett's fascination with the exact meaning of the
original writers of the Constitution, I wonder what their thoughts were
about nuclear energy, satellites in space, a U.S. Air Force, which was
not specifically authorized in the Constitution. I think we will find
ourselves in a very difficult position where when we face the
challenges of climate change, cyber warfare, that a Court that looks
back will not grant Congress the authority to protect the American
people.
Also limiting the authority of the Federal Government, a 6-to-3
conservative majority could take on a more aggressive judicial review
of agency actions. Several members of the Supreme Court have already
called for the reconsideration of the Chevron decision. This is a legal
doctrine that instructs the Federal judiciary to defer to a Federal
agency's reasonable interpretation of an ambiguous or unclear statute
that it administers.
If the Supreme Court overturns the Chevron deference, it could strike
down agency rules that do not comport with the Court's interpretation
of the statute. This could make toothless environmental, food and drug
safety, labor, and a host of other regulations enacted for the benefit
of the workers and consumers. It would also shift the Court's decisions
in favor of the corporate and
[[Page S6483]]
special interests that tend to challenge these agency regulations in
the first place.
One of reasons that the agencies were given the authority to
implement our laws--given by Congress to the agencies--was their
expertise, an expertise that in most cases far exceeds that of the U.S.
Supreme Court.
Now, I intend to vote against the nomination of Judge Amy Coney
Barrett to be an Associate Justice of the U.S. Supreme Court because I
am convinced that she will not guard core constitutional principles,
that she will not interpret the law to protect the rights of the
vulnerable, and that she will read the law with a backward-looking
perspective, not consistent with the realities of our time and the
growing dangers that we face in the future.
As my Republican colleagues accelerate this nomination at a breakneck
pace, it speaks to the deeply misplaced priorities of this body. We
simply should be not be undertaking a Supreme Court nomination at this
time, especially when it should rightfully take place during the next
Presidential term after the voters have made their decision.
The Senate's foremost priority right now should be to provide
additional pandemic relief. My colleagues have displayed a profound
lack of urgency to address the many challenges Americans face due to
the pandemic. This is despite the repeated warnings from public health
experts and economists about what will happen if we do not enact
additional fiscal aid.
However, my Republican colleagues continue to turn a blind eye, even
as COVID-19 cases spike, businesses close, unemployment remains high,
and States consider deeper budget cuts. Under these extraordinary
circumstances, I cannot support Judge Barrett's nomination to the
Supreme the Court of the United States.
I urge my Republican colleagues to stop this shortsighted rush. Let's
put the best interests of the country first. Let's wait a few more days
and let the American people have a say. Let's focus on the COVID-19
crisis, which demands our immediate attention. Just because you can do
something doesn't mean you are doing the right thing. I strongly
believe my Republican colleagues are making a major mistake that will
be doing lasting damage to both this institution and the Supreme Court,
and I urge them to reconsider.
Instead of pushing forward with this ill-suited nominee, let's get to
the business at hand: addressing the great challenges we face due to
the pandemic and beyond, as well as working together to fix the Senate
so that we no longer break faith with the people who sent us here, the
people we represent.
With that, I yield the floor.
Mr. BENNET. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Lankford). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. BENNET. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.